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The current Bush administration defense of its Terrorist Surveillance Program, known to some as the illegal domestic spying program, leans heavily for its legal justifiation on the Authorization To Use Military Force, which was passed right after 9/11. The argument is that the AUMF is a later-enacted, more specific measure, and that it therefore supersedes the more general and earlier adopted Foreign Intelligence Surveillance Act. By this means, presto, the AUMF authorized warrantless wiretapping consistent with the terms of that later-enacted statute. Many in Congress are already on record saying that they never intended the AUMF to have that consequence and that evidence of legislative intention has bolstered arguments by many opponents of the program that the administration's statutory claim is risible. But now this recent disclosure reinforces that judgment. It indicates that the Bush administration lawyers who were around when the AUMF was negotiated also did not think the AUMF had that consequence. Their initial theory, the new disclosure indicates, was that, even aside from their broad views about the president's power as commander in chief to override conflicting statutes, FISA itself contained an implied exception for the president to do what needed to be done. The AUMF argument, then, was something that the administration came up only with much later. But if neither the congressional leaders nor the Bush administration lawyers who actually negotiated the AUMF's passage thought that vaguely worded measure sufficed to provide authority for warrantless wiretapping, then what exactly is the reason to think that the best reading of that statute is the one that is now being pushed by the administration? After all, it's one thing to contend that a vague, later-enacted statute supersedes an earlier one that is clear. It's quite another to argue that a later-adopted interpretation of that same statute should supersede the original one.
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I'll get back to the substance of our legal debate on presidential authority in a sec, but first a response to Marty's two more general points.
Does anyone care what the Somalia air strikes tell us about the current legal status of the "war on terror"? Doesn't look like it, Marty says. Quite right, Marty. Though I'm wondering if/whether the story would've played differently if all eyes hadn't been riveted to the rather gripping Democratic primary battle right here in the territorial United States.
But even if it weren't for the availability of better blog fodder elsewhere, Marty asks, does anyone think law has anything to do with any question of war, foreign affairs, and/or military force? Great, and big, question. My quick take: Folks often don't, but they should. There are all kinds of reasons why there are differences between the laws governing, say, the military and the laws governing, say, health care. But a country of laws is a country of laws. I've never been able to see why it seems so easy for so many to see security as something altogether outside that framework. In any case, the law in, about, and of war has been with us for a long time. And as I've noted elsewhere, it has more than once in our history been the military at the forefront of making sure it's here to stay.
Back to Somalia. I'm confident Marty is right that the current administration (and likely most other executives) would assert that the president has the constitutional power to pursue a strike like this without going to Congress for prior authorization first. But what I think this administration would say about its power here in particular is that this strike was the latest salvo in the ongoing "war on terror" (or whatever they call it these days). That is, they'd say it is part of the president's commander-in-chief power to direct the use of the armed forces in an ongoing conflict. So for them it's not, as Diane suggests, a question of what legal authorization is required to start a war (Somalia, after all, seemed to consent to this attack), but what legal limits there are on how a war is carried out. It's in that respect, I think, that what the AUMF says about "necessary and appropriate" matters. Whether or not the president needed to go to Congress in the first instance for authorization to pursue a global "war on terror," Congress has now spoken on that subject.
Most folks (I include myself) think the AUMF surely contemplated the invasion of Afghanistan in 2001. Did it also contemplate, say, targeted killing in Somalia in 2008? Because Diane and I agree the law of war might shed some light on the scope of Congress' thinking here. I'd be interested to know whether jus in bello (the law during war, like the Geneva Conventions) would put this within the bounds of conduct in this case (assuming, Diane, that we're in the administration's particular world of war).
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